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New Study Shows Mashups and Remixes Could Be Using Copyrighted Material Lawfully

Posted by Patricia Aufderheide on Jan 1, 2008 at 11:32 AM

When college kids make mashups of Hollywood movies, are they violating the law? Not necessarily, according to the latest study on copyright and creativity from the Center and American University’s Washington College of Law.

The study, Recut, Reframe, Recycle: Quoting Copyrighted Material in User-Generated Video, by Center director Pat Aufderheide and Peter Jaszi, co-director of the law school’s Program on Information Justice and Intellectual Property, shows that many uses of copyrighted material in today’s online videos are eligible for fair use consideration. The study points to a wide variety of practices—satire, parody, negative and positive commentary, discussion-triggers, illustration, diaries, archiving and of course, pastiche or collage (remixes and mashups)—all of which could be legal in some circumstances.

Fair use is the part of copyright law that permits new makers, in some situations, to quote copyrighted material without asking permission or paying the owners. The courts tell us that fair uses should “transformative,” – adding value to what they take and using it for a purpose different from that of original work. So when makers mash up several works—say, The Ten Commandments , Ben-Hur and 10 Things I Hate about You , making Ten Things I Hate about Commandments —they aren’t necessarily stealing. They are quoting in order to make a new commentary on popular culture, and creating a new piece of popular culture.

Unfortunately, this emerging, participatory media culture is at risk, with new industry practices to control piracy. Large content holders such as NBC Universal and Viacom, and online platforms such as MySpace and Veoh are already crafting agreements on removing copyrighted material from the online sites. Legal as well as illegal copying could all too easily disappear. Worse still, a new generation of media makers could grow up with a deformed and truncated notion of their rights as creators.

The study recommends the development of a blue-ribbon committee of scholars, makers and lawyers to develop best-practices principles. Such principles, similar to ones documentary filmmakers developed in the Documentary Filmmakers’ Statement of Best Practices in Fair Use can help new creators and online providers decide what’s legal, and assure that the Internet remains a safe space for new forms of self-expression.

The study is part of a larger Participatory Media project, funded by the Ford Foundation as part of the Center for Social Media’s Future of Public Media Project.

For a more extensive database of videos consulted by our researchers, click here.

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Discussion

Hi, Pat and Peter:

Thanks for the fantastic report. It was great to talk to you about your research at SilverDocs this year, even better to see the results. We’ve taken great pains at Revver to be well-versed on the current standards for fair use, and welcome open discussion about creators rights and the limits of copyright law. We’re proud of the system we’ve developed, which we believe fairly rewards all stakeholders, but we think there are many miles to go before we live in a universe that doesn’t stifle independent creativity.

Posted by awgyetvan on Jan 3, 2008 at 6:49 PM

Thanks so much for your sorely needed study, and kudos for getting the message out in Las Vegas next week.

I’ve featured it a bit here on Shaping Youth, and will post a follow up piece tomorrow about kids’ IP content in the digital sphere.

If Kathryn Montgomery is anywhere nearby, please tell her Amy wishes her HNY, and let her know I’m still only halfway through Digital Generation due to my backlog, but will be posting it as one of my ‘need to read’ books on S.Y. soon too.

Thank you for all you do...for youth, for media literacy, for fairness and focus on topics that matter.

Posted by Shaping Youth on Jan 3, 2008 at 10:46 PM

Guess you need the link, sorry, here it is:
http://www.shapingyouth.org/blog/?p=949

Recut, Reframe, Recycle: What’s “Fair Use” in New Media?

Best, Amy Jussel
Founder, E.D. http://www.ShapingYouth.org

Posted by Shaping Youth on Jan 3, 2008 at 10:48 PM

Great report, Fair Use related to online videos is in dire need of help. The doctrine is currently very confusing, while being one of the only legal tools for remixing culture.

I am a bit concerned about the “blue-ribbon” committee. I see a real need to include non-legal creators. Reading the report implied that it would be all academics, due to the lack of a cohesive community of online video producers. Although there is no formal organization for online video creator there are leaders in the field. Adding members to the committee from popular video blogs, like BoingBoing TV, could add a practical prospective to the committee.

Distilling what is transformative in a way that is understandable by the average creator is a real challenge, and is essential to improving the doctrines usefulness. Transformative works may benefit from protection outside the Fair Use doctrine. The four factor balancing test may be a hindrance to making a transformative exception to copyright workable on a practical level.

This will be an interesting project to follow and possibly participate in.

Brian Rowe
2L Seattle University
Founder Freedom for IP
Longer comments on Freedom for IP’s Blog:
http://www.freedomforip.org/2008/01/fair-use-recut-reframe-recycle.html

Posted by BrianRowe on Jan 8, 2008 at 6:04 PM

Dear all,

As a public educator and a multimedia staff development “expert”, I am thrilled to see your study tackle this emerging phenomenon. These “mashups” are exactly the kinds of responses to the culture I would like my own students to create.

However, I believe the elephant in the room is not the ever-widening possibilities of Fair Use, but, more importantly for me and others in educational institutions, the *means* by which the material was excerpted in the first place.

What I mean is that according to the Digital Millennium Copyright Act (DMCA), users are not allowed to circumvent encryption technology (on DVDs, for instance). I may have the Fair Use right to utilize a clip from a Hollywood film in my classroom, but according to the DMCA, I don’t have the right to *extract* that clip from a DVD.

The only exception to this, as far as I know, is for media or film studies professors. I am neither one of those.

I skimmed your report and I would argue that many of the examples you cite would have to have started originally with encrypted DVDs.

This is not a criticism of your study per se, but a desperate attempt to open a discussion of the frustrations faced by educational institutions as we try to meet our students on the level that they have the greatest engagement.